Reynolds v WA Police - [2025] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   REYNOLDS -v- WA POLICE [2025] WASC 104
CORAM:   GETHING J
HEARD:   20 MARCH 2025
DELIVERED          :   9 APRIL 2025
FILE NO/S:   SJA 1073 of 2024
BETWEEN:   KELLAN JOHN REYNOLDS
Appellant
AND
WA POLICE
Respondents

ON APPEAL FROM:
For File No:   SJA 1073 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   JO 1792 of 2023; PE 2382 of 2023; AL 2414 of 2022

Catchwords:

Criminal law - Single judge appeal - Application for leave to appeal conviction - Whether magistrate erred in removing the accused from the courtroom for misbehaviour and continuing with the trial

Legislation:

Criminal Procedure Act 2004 (WA) s 88, 140, 172
Magistrates Court (General Rules) 2005 (WA) pt 4
Magistrates Court Act 2004 (WA) s 15, s 16

Result:

Leave to appeal on grounds 8, 13, 15, 20 and 21
Appeal allowed
Matters remitted to the Magistrates Court in Perth for retrial

Representation:

Counsel:

Appellant	:	In Person
Respondents	:	Mr G Stockton

Solicitors:

Appellant	:	In Person
Respondents	:	State Solicitor's Office

Case(s) referred to in decision(s):

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157
Branch v Town of Victoria Park [2013] WASC 231
Coles Supermarkets Australia Pty Ltd v Ga [2022] VSC 438
Commonwealth Bank of Australia v Deighton [2024] WASC 410
Commonwealth Bank of Australia v Moir [2024] WASC 319
Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48
Cousins v WA Police [2025] WASC 39
Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444
Ex parte Tubman; Re Lucas [1970] 72 SR (NSW) 555
Fisher v O'Hehir [2020] WASC 353
Fisher v O'Hehir [2023] WASCA 19
Frigger v The State of Western Australia [2024] WASCA 159
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Grassby v The Queen (1989) 168 CLR 1
In re Andrew Dunn and The Morning Bulletin Ltd [1932] St R Qd 1
Kelly v Fiander [2023] WASC 187
Kelly v Fiander [2024] WASC 275
Kwok v City of Subiaco [2023] WASC 307
Mansell v Mignacca-Randazzo [2013] WASC 66
McCagh v Rural Bank (a division of Bendigo and Adelaide Bank Ltd) [2024] WASCA 68
Mills v Hendriksen [2008] WASC 79
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Morgan v Kramer [2019] WASC 68
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
O'Connell v Western Australia [2012] WASCA 96
Pelechowski v Registrar, Court of Appeal [1999] HCA 19
Prazmo v Director of Public Prosecutions [2024] WASC 386
R v DAJ [2005] QCA 40
R v Sweet [2021] QDC 216
Reynolds v Nonkovic [2023] WASC 326
Reynolds v WA Police [2024] WASC 67
Reynolds v WA Police [No 2] [2025] WASC 10
Saad v Baron [2012] WASC 507
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sethi v Bhavsar [2020] WASCA 52
Smart v Prisoner Review Board (WA) [2012] WASC 48
Sprlyan v Wyborn [2019] WASC 227
Stefan v McLachlan [2023] VSC 501
Tessa v R [2024] VSCA 204
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
WFS v State of Western Australia [No 4] [2020] WASCA 178
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

GETHING J:

Introduction

On 28 August 2024 at Albany, Kellan John Reynolds (Appellant), was convicted of two offences, one count of breaching a restraining order and one count of failing to answer a bail undertaking. At the commencement of the hearing a series of progressively unproductive exchanges took place between the Appellant and the Magistrate (Magistrate). The net result was that after about 10 minutes, the Magistrate had the Appellant removed from the courtroom. The Magistrate then proceeded with the two trials in his absence, including hearing evidence from the prosecution witnesses, before finding the Appellant guilty of each offence. Her Honour then imposed modest fines for each offence.
By appeal notice filed 21 October 2024 (Appeal) the Appellant appealed both convictions.
The appeal was heard before me on 20 March 2025.
Prior to the hearing of the Appeal, counsel for the Respondent had filed written submissions conceding the Appeal on the basis that, in making the decision to remove the Appellant from the court room, the Magistrate had applied the incorrect test. I agree and, being unable to conclude that no substantial miscarriage of injustice occurred, allow the appeal.

Proceedings in the Magistrates Court

Three matters were listed for trial on 28 August 2024 at Albany.
In prosecution notice AL 2414 of 2022, the Appellant was charged that on 18 November 2022 at town in rural Western Australia[1] he, being a person bound by restraining order (which was identified), breached that order. On 10 February 2023 the court entered a plea of not guilty to this charge on behalf of the Appellant pursuant to Criminal Procedure Act 2004 (WA) (CPA) s 126(5).
[1] Which is identified in the prosecution notice, but which I will refrain from identifying.
The person protected by the restraining order is the Appellant's former partner, whom I will refer to as 'MET'. The restraining order, among other things, prevented the Appellant from entering or remaining on MET's home address or any other place where she lived or worked, or being within 100 m of the nearest external boundary of such premises. MET worked as a teacher at a school in the rural Western Australian town identified in the prosecution notice. Her son, of whom the Appellant is the father, was a student at the same school (Son). The prosecution alleged that the Appellant visited the Son at the school and in doing so breached the terms of the restraining order protecting MET.
In prosecution notice PE 2382 of 2023, the Appellant was charged that on 12 January 2023 he, without reasonable cause, failed to appear in the Magistrates Court at Albany, and failed to appear, as soon as practical thereafter, such appearance being a requirement of a bail undertaking entered into by him on 2 December 2022. On 10 February 2023 the court entered a plea of not guilty to this charge on behalf of the Appellant pursuant to CPA s 126(5).
In prosecution notice JO 1792 of 2023, the Appellant was charged that on 16 February 2023 he, without reasonable excuse, failed to appear in the Magistrates Court at Albany and failed to appear as soon as practicable thereafter, such appearance being a requirement of an undertaking entered into by him on 10 February 2023. On 31 March 2023, the court entered a plea of not guilty to this charge on his behalf of the Appellant pursuant to CPA s 126(5).
All three charges were the subject of a prior appeal to this court, along with a number of other charges. Her Honour Justice Forrester refused leave to appeal, and dismissed the appeal, in relation to the three charges the subject of the present appeal on the basis that the Appellant had not yet stood trial in the Magistrates Court and had not been convicted or sentenced. Consequently no 'decision' had been made as that term is defined in Criminal Appeals Act 2004 (WA) (CA Act) s 6, and thus the Appellant had no right of appeal pursuant to CA s 7 in respect of those charges.[2]
[2] Reynolds v WA Police [2024] WASC 67 [2] - [3] (Forrester J) (Reynolds 2024).

At the commencement of the hearing before the Magistrate, an exchange took place between her Honour and the Appellant in which the Appellant refused to acknowledge his identity as 'Kellan John Reynolds'. It is readily apparent that the Appellant firmly believes that he should not be referred to by this name. For example, in an affidavit filed in these proceedings he describes himself as 'functioning as trustee/ executor for the ©Kellan John Reynolds, estates'. This issue has been the subject of three prior appeals to this court by the Appellant.[3] Courts throughout Australia have repeatedly rejected the notion of a distinction between a person's legal identity and their status as a 'living person', sometimes referred to as the 'strawman duality theory'.[4]
[3] Reynolds v Nonkovic [2023] WASC 326 (Reynolds 2023); Reynolds 2024 [17] - [26]; Reynolds v WA Police [No 2] [2025] WASC 10 [2] (Lemonis J) (Reynolds 2025).
[4] Recent examples include: Reynolds 2025 [2]; Commonwealth Bank of Australia v Moir [2024] WASC 319 [86] - [91] (Lemonis J); Kwok v City of Subiaco [2023] WASC 307 [40] (Whitby J); Branch v Town of Victoria Park [2013] WASC 231 [60] - [66] (Seaward J) (Branch); Kelly v Fiander [2023] WASC 187 [11] ‑ [13] (Vandongen J); Stefan v McLachlan [2023] VSC 501 [28] (Dixon J); Coles Supermarkets Australia Pty Ltd v Ga [2022] VSC 438 [17] (Hetyey AsJ); R v Sweet [2021] QDC 216 [1] - [6] (Cash DCJ).
There was then a second issue raised. The Appellant said that he had tried to issue a witness summons to the Son whom he wanted to give evidence in his defence. The Magistrate informed the Appellant that she had set aside this summons on the basis that, as the Son was a child, the Appellant was required to obtain leave to issue the summons, which he had not done. The Appellant sought an adjournment because he wanted the Son to give evidence. There then followed a further exchange between the Appellant and the Magistrate in which the Appellant sought to raise what her Honour referred to as 'pseudo law'. After a number of threats to do so, the Magistrate ejected the Appellant from the courtroom.
In order to accurately capture the situation being faced by the Magistrate at the commencement of the hearing on 28 August 2024, and deal with the Appeal, it is necessary to quote the transcript in its entirety up to the point in time at which the Appellant was removed from the court:[5]
[5] Magistrates Court transcript, 28 August 2024, pages 1 - 12.
HER HONOUR: Kellan John Reynolds. Is that your name?
ACCUSED: Bear with me, please, ma'am. I need to set up. Thank you.
HER HONOUR: Sergeant Walker, you appear for the prosecution?
WALKER, MR: May it please the court, your Honour. I do.
HER HONOUR: Thanks. All right. Mr Reynolds.
ACCUSED: We answer to the name out of necessity under duress, ma'am.
HER HONOUR: Okay. Thank you. So ‑ ‑ ‑
ACCUSED: I haven't finished yet, ma'am. We're here under duress.
HER HONOUR: You have. You have.
ACCUSED: No, I haven't.
HER HONOUR: Yes, you have.
ACCUSED: Yes, you are. You're interfering with my defence.
HER HONOUR: Mr Reynolds, you are listed for trial today.
ACCUSED: There's no Mr Reynolds her.
HER HONOUR: Are you - well, you're the person named in the prosecution notices. You're listed for ‑ ‑ ‑
ACCUSED: There's no person, here ma'am. There's the living man, Kellan John.
HER HONOUR: Okay. You are a person. You're listed for trial today on three charges.
ACCUSED: I am not a person.
HER HONOUR: Are you maintaining - - -
ACCUSED: I am not a person.
HER HONOUR: Are you maintaining - stop with your - these ridiculous arguments, Mr Reynolds.
ACCUSED: They're not ridiculous arguments, ma'am.
HER HONOUR: Are you - - -
ACCUSED: You are interrupting with my defence.
HER HONOUR: Are you maintaining your please of - - -
ACCUSED: You have interrupted me while I'm trying to make an opening statement.
HER HONOUR: Mr Reynolds, stop now. I didn't ask you for an opening statement.
ACCUSED: It doesn't matter what you asked.
HER HONOUR: I didn't - I didn't - - -
ACCUSED: You asked me a question.
HER HONOUR: Yes, it - - -
ACCUSED: Yes, it - - -
HER HONOUR: Okay. Mr Reynold, if you continue, I will hold - - -
ACCUSED: There's no Mr Reynolds here.
HER HONOUR: - - - You in contempt and you will be ejected from the court.
ACCUSED: There's no contempt here, ma'am.
HER HONOUR: And I will then proceed without you.
ACCUSED: I'm here to answer to the name in defence.
HER HONOUR: If you continue to interrupt me, I will hold you in contempt. You will be - - -
ACCUSED: You're making threats of malice and violence, ma'am.
HER HONOUR: No, I'm not.
ACCUSED: Yes, you are.
HER HONOUR: I'm saying you will be ejected from the court if you continue in this vein. So you need to listen to me, or you can exit the court and I will deal with these matters in your absence. Now, I have got pleas of not guilty to three charges. They are all listed for trial. Are you maintaining the pleas of not guilty.
ACCUSED: I haven't entered any plea, ma'am. I'm here out of necessity and under duress from threats of violence.
HER HONOUR: On two of the charges - on two of the charges you have entered pleas of not guilty. On a third charge, the plea of not guilty was entered by the court, but on two of them you have entered the pleas. Are you maintaining those pleas? Are you going to answer my question?
ACCUSED: Are you going to let me state what I'm, going to state, ma'am?
HER HONOUR: You need - you need to answer my questions first. Are you maintaining the pleas of not guilty?
ACCUSED: I'm maintaining a plea of no jurisdiction.
HER HONOUR: Okay. Well, that is rejected. And I understand you had made an application - sorry. You had issued a summons in this matter; is that correct?
ACCUSED: I issued two summons in this matter.
HER HONOUR: Okay.
ACCUSED: Which I have here.
HER HONOUR: Okay. And do you know whether those persons are here or not?
ACCUSED: I believe one person is here. Actually, ma'am, I have issued three summons in this matter.
HER HONOUR: Okay.
ACCUSED: Which I have emailed to the prosecutor. And one was [MET], one was [the Son], and the other was the principal of [the Son's] school, who is in contempt of this court and didn't follow the - that witness summons, ma'am.
HER HONOUR: Right. Okay. Now, I understand [the Son] is a child. Is that right?
ACCUSED: [the Son] is the primary witness to the allegations, ma'am.
HER HONOUR: But is he a child?
ACCUSED: [the Son] is a child.
HER HONOUR: Okay. So under the Restraining Orders Act, you have to have leave of the court before you can call a child witness. So you will have to apply for leave before - - -
ACCUSED: I have the - the witness with the court stamp saying that [the Son] has leave by the court stamp.
HER HONOUR: That's a summons, but it doesn't constitute leave of the court to call the child. So what - - -
ACCUSED: Well, its' issued by the court, ma'am.
HER HONOUR: Yes, but that doesn't constitute leave to call him as a witness. That's simply a summons, but that doesn't mean you have got leave to call him as a witness. So - - -
ACCUSED: So the fact that they didn't inform of rules, and I - I was under the impression that [the Son] would be here today as a primary witness in the interests of justice. Is justice being denied and my defence being denied?
HER HONOUR: Just listen to me.
ACCUSED: I'm listening, ma'am.
HER HONOUR: The issue of a summons is a different thing from getting leave to call the child, which is required under the Restraining Orders Act in proceedings under the Act, which the charge of breach of a restraining order is. That is a proceeding under the Restraining Orders Act. So you do need to seek leave of the court before you can call a child.
Now, I was prepared to proceed on the basis that the child could be summonsed and then I could hear the argument as to leave today, which is not unusual at all to hear applications on the morning of trial, but as it is, the - there was a lawyer presented before court - or attended court, I should say, last Friday, I think it was, for an application to set aside that summons. I heard that application and I granted it.
However, I have been given some additional information by the lawyer involved in that application this morning, because he had informed me that the child wasn't present during any - any allegation of anything against you, and so on that basis it seemed to me that the child wouldn't be in a position to give any relevant evidence anyway. However, the lawyer has now informed the court that apparently that was erroneous, and he has received information to suggest the child might well have been present. So - - -
ACCUSED: Can you explain that, what you mean by the child being present, as to what, ma'am?
HER HONOUR: Present during the event that's the subject of the charge. So that being the case, what I'm prepared to do, certainly, is hear from you as to what relevant evidence the child might be able to give. If you're saying the child was present and you want that child here, then it may well be necessary to have the summons issued again, but you will have to explain to me why you're seeking to call the child.
ACCUSED: In the interests of justice, and he is the primary witness to the allegations of the - the alleged day, ma'am.
HER HONOUR: So the allegation is from 18 November 2022.
ACCUSED: That's correct.
HER HONOUR: How old would [the Son] have been then?
ACCUSED: 10. No, it was a couple of days before he - three days before his 10th birthday. That's correct.
HER HONOUR: Okay. So nine. And you're saying he was - I mean, I - I don't know anything about the charges. know if it's alleged this thing happened in a house property or - or where, but are you saying that the was a witness to the events of the - - -
ACCUSED: A primary witness to the events, ma'am.
HER HONOUR: Okay.
ACCUSED: And is the major - is part of my defence, so to deny a primary witness is denying my defence.
HER HONOUR: Well, again, I set aside the summons on the basis of the information I was given, which was that he wasn't there. Now I'm ‑ ‑ ‑
ACCUSED: So that's incorrect evidence, ma'am.
HER HONOUR: Well, now I'm told - well, it wasn't evidence. It was a submission given by the lawyer making the application. Now, he has emailed apologetically, you know, saying that he has inadvertently misled the court, apparently, because he said - I mean, he doesn't know. He wasn't there either, but what he's saying is he's now in receipt of some additional information which suggests the child may well have been there. You're saying he was. So you're saying that the child is in a position to give evidence for you.
ACCUSED: That's correct.
HER HONOUR: For the defence case. Okay. So that being the case, the child won't be here today because I set aside the summons. So if you - - -
ACCUSED: We will have to adjourn, ma'am.
HER HONOUR: Yes. Yes. So that's where I'm going. So, you see, sometimes it's worthwhile listening to me before you get too upset.
ACCUSED: I'm not upset, ma'am. I have got a defence.
HER HONOUR: All right.
ACCUSED: And the way I need to present my defence
HER HONOUR: Okay. But there are times for making submissions, and you need to listen to me first and wait until - - -
ACCUSED: No, you have called it - ma'am, you interrupted me.
HER HONOUR: Wait until - - -
ACCUSED: You asked me a question.
HER HONOUR: ‑ ‑ ‑ I tell you it is time. There are procedural parameters around what happens - - -
ACCUSED: you asked me a question am I the name. I have a right to answer.
HER HONOUR: Mr Reynolds, stop it.
ACCUSED: There is no Mr Reynolds here.
HER HONOUR: Okay. I'm sorry if that hurts your feelings or upsets you, but - - -
ACCUSED: No, there's no feelings involved.
HER HONOUR: Okay. Well, then stop getting so uptight then.
ACCUSED: I'm not. I'm trying to give my defence and you're interrupting me.
HER HONOUR: No, but it's not time for that.
ACCUSED: Yes, it is.
HER HONOUR: And I think I have just - - -
ACCUSED: You asked - you asked a question, ma'am.
HER HONOUR: No, I asked you if you're maintaining your pleas of not guilty. That's all I asked you.
ACCUSED: The prosecution hangs on the legal name, ens legis, and I'm defending the - - -
HER HONOUR: Okay. If you - - -
ACCUSED: The name in question.
HER HONOUR: Okay. well, that' snot a defence that's available to you.
ACCUSED: Of course it is. All defences are on the table.
HER HONOUR: That's not ‑ ‑ ‑
ACCUSED: So you're limiting my defence.
HER HONOUR: That's not a defence that's available to you.
ACCUSED: You're limiting my defence ‑ ‑ ‑
HER HONOUR: On the basis that ‑ ‑ ‑
ACCUSED: Therefore, the estoppel is granted. You're granting an estoppel.
HER HONOUR:There's no estoppel. There's no ‑ ‑ ‑
ACCUSED: You're limiting defence.
HER HONOUR: No, I'm not.
ACCUSED: So there's estoppel.
HER HONOUR: No, I'm not. Stop playing games.
ACCUSED: Yes, you are. There's no games here, ma'am.
HER HONOUR: I'm not - yes, you are.
ACCUSED: You're saying what I can defend myself with and what I can't.
HER HONOUR: You can't ‑ ‑ ‑
ACCUSED: You're limiting the defence of an accused.
HER HONOUR: You can't bring a defence saying that you're not a person. That's not a defence.
ACCUSED: Yes, I can.
HER HONOUR: No, it's not a defence.
ACCUSED: It is a defence.
HER HONOUR: No, it isn't. It isn't, Mr Reynolds. Now ‑ ‑ ‑
ACCUSED: It's quite clear ‑ ‑ ‑
HER HONOUR: No, are you ‑ ‑ ‑
ACCUSED: Du v Administrators (1785).
HER HONOUR: It's nonsense.
ACCUSED: It's not nonsense.
HER HONOUR: Don't (indistinct) with a pseudo law.
ACCUSED: It's a Supreme Court ‑ ‑ ‑
HER HONOUR: I'm not interested in it.
ACCUSED: So you're not - you're limiting my defence again.
HER HONOUR: No, I'm not.
ACCUSED: Therefore, estoppel.
HER HONOUR: No, I'm not. No, I'm not. Stop playing games.
ACCUSED: There's no games here, ma'am. The one - who's playing games? As you're - you're trying to gain a legal advantage by saying what my defence is.
HER HONOUR: I don't have any interest - no. I don't have any interest - what advantage? I'm here to preside over ‑ ‑ ‑
ACCUSED: The legal named acedent.
HER HONOUR: That is a completely baseless submission. Now, as I have said ‑ ‑ ‑
ACCUSED: Is that right? Really?
HER HONOUR: If you want - if you want ‑ ‑ ‑
ACCUSED: Can you prove it's a completely ‑ ‑ ‑
HER HONOUR: I don't need to prove anything to you, Mr Reynolds.
ACCUSED: Really? So you make a claim and you don't have to prove anything?
HER HONOUR: No, I don't - I don't need to prove anything. I'm telling you it's baseless, what you're saying.
ACCUSED: Yes. Well, I don't have to agree with what you say, unless there's ‑ ‑ ‑
HER HONOUR: But you do have to respect the court, and if you can't, then you're in contempt and I will eject you.
ACCUSED: So where haven't I respected the court, ma'am? I have - I have answered to the legal name.
HER HONOUR: By your conduct right now. By your conduct right now.
ACCUSED: No, that's not contempt.
HER HONOUR: Don't ‑ ‑ ‑
ACCUSED: I'm at the Bar.
HER HONOUR: No.
ACCUSED: I'm in defence of the name.
HER HONOUR: No. Stop.
ACCUSED: Contempt is when you're not willing to be here.
HER HONOUR: Stop. Stop, Mr Reynolds, now. Stop.
ACCUSED: Stop what?
HER HONOUR: Stop talking. Okay. Take him out, please. You do not laugh at the court, Mr Reynolds. Get out of the courtroom.
ACCUSED: I will pack up my things. Thank you.
HER HONOUR: Be quick about it.
ACCUSED: So now you're using feelings.
HER HONOUR: No, I'm responding to your behaviour, which is contemptuous of the court.
ACCUSED: My behaviour? Ma'am, I have looked at what contempt is.
HER HONOUR: It's contemptuous and you are ejected from the court.
ACCUSED: I'm speaking to - ma'am ‑ ‑ ‑
HER HONOUR: You may not speak to me anymore. Just collect your things and leave, and if you have ‑ ‑ ‑
ACCUSED: I'm leaving.
HER HONOUR: And if you have associates with you in the back of the court, they can also leave. Sir, if you are - if you are here on his behalf - no, you can leave now. No, you can leave now, sir. Leave now. You have no business in here.
……, MR: I'm a witness.
HER HONOUR:You can leave.
……, MR: He has got security guards around him.
HER HONOUR: You can leave. Leave now. Leave now.
ACCUSED: It's all right. I can speak for myself.
HER HONOUR: I don't know how many times I have to say it. Clearly, about 10.
ACCUSED: Thank you for your time, ma'am.
….., MR: Is this the Crown or a corporation?
HER HONOUR: Leave the court and stop with the pseudo law.
….., MR: It's not pseudo.
HER HONOUR: It's pseudo law.
….., MR: I don't think it's pseudo.
HER HONOUR: Now, sergeant, just on this issue of the summons, I set it aside, but seemingly, I did so on the erroneous grounds

And then shortly afterwards to the prosecutor:[6]
I have now ejected Mr Reynolds from the courtroom and I don't intend to invite him back in, but I think in the circumstances you need to run the case.
[6] Magistrates Court transcript, 28 August 2024, page 15.
Accordingly, the Magistrate proceeded with the trial in relation to AL 2414 of 2022. The prosecution called three witnesses who gave evidence, including MET. The Magistrate gave oral reasons, the transcript of which is in the materials before this court, and convicted the Appellant of the charge.
The Magistrate then referred to PE 2382 of 2023. Her Honour noted that there was an indication on the court record to the effect that the Appellant in fact attended court on 12 January 2023. The prosecution discontinued the charge which her Honour accepted and dismissed the charge.[7] The court then adjourned for lunch.
[7] Magistrates Court transcript, 28 August 2024, page 45.
On returning after lunch, the Magistrate proceeded with the trial of JO 1792 of 2023. Again, witnesses were called and gave evidence. The Magistrate gave oral reasons, the transcript of which is in the materials before this court, and convicted the Appellant of the charge. When giving reasons, her Honour set out reasons for the decision to exclude the Appellant:[8]
HER HONOUR: No, that's okay. Okay. No, that's all right. Now, sorry, I've just accidentally - I've clicked the wrong button. I just want to make sure I'm noting that he has been convicted after trial. Now, of course, this has been, as was the other trial, a trial conducted in the absence of the accused, which is not a decision that should be made lightly by a court, but I am not prepared to have Mr Reynolds in here making his nonsensical submissions to me in an argumentative way, in which he talks over me continually.
He actually ended up laughing at me. Now, it's not me personally that the concept of contempt is aimed at.
Contempt is contempt in the face of the court. So the processes of the court, what it stands for, the fact that this is a serious proceeding, it's a serious and solemn occasion, and when people come in here and want to make stupid nonsensical pseudo-law arguments, that in and of itself, in my view, is contentious. But in addition to that, Mr Reynolds, as I said, was talking over me, was not listening, and simply wanted to be belligerent and to advance an argument that I, in fact, was the one who was interfering with him. I was not.
I was asking him a question which I would ask anyone, particularly someone who's appearing unrepresented, namely, I was asking him, "Are you maintaining your pleas of not guilty?" That's all I needed an answer to at that point. It was nothing to do with trying to controvert any defence he had. As it is, I don't consider that he had any reasonable defence for either of these charges, and as to his submission that he's not a person, I can't make sense of it. I defy anyone to make sense of that. But in any event, those are my reasons, just to enlarge upon the reasons why I was not prepared to have him in the courtroom.
He also, as do a lot of constitutionalists, had someone in the back supporting. Now, I've had people of the same viewpoint have people in the back in support of them in other matters, and I don't necessarily mind, but once I have made a decision that the accused himself is not going to stay in court, then those other people have no reason to remain in court either, which is why I ejected that other person as well. So those are my reasons for getting rid of the accused. All right. Now, we can proceed to sentence.
[8] Magistrates Court transcript, 28 August 2024, pages 62 - 63.
The Magistrate then proceeded to sentence the Appellant. In relation to AL 2414 of 2022 her Honour imposed a fine of $2,500 and ordered the Appellant to pay costs in the amount of $137. In relation to JO 1792 of 2023, the Magistrate imposed a fine of $1,000 and ordered the Appellant to pay costs in the amount of $137.

Appeal

The Appeal is in relation to all three charges: AL 2414 of 2022, PE 2382 of 2023 and JO 1792 of 2023. As I have just mentioned, PE 2382 of 2023 was discontinued ([16]). A decision to accept a notice of discontinuance is not a 'decision' which by CA s 6 may be subject of an appeal. So I do not need to consider this charge further.
The Appeal was commenced 26 days in excess of 28 days after 28 August 2024. Accordingly, the Appellant requires,[9] and has sought, an extension of time within which to commence the Appeal.
[9] CA Act s 10(3).
By Notice of Respondent's Intention filed 1 November 2024, the Respondent advised the court that it intended to take part in the Appeal.
The Appeal is made under CA Act div 2 of pt 2. A decision of a court of summary jurisdiction to convict an accused of a charge may be appealed to the Supreme Court by a person aggrieved on the grounds that (relevantly): [10]
(a)the court made an error of law or fact or both;
(b)the court has acted without or in excess of jurisdiction;
(c)the court imposed a sentence that was manifestly inadequate or excessive; or
(d)there has been a miscarriage of justice.
[10] CA Act s 6(c), s 7(1) and s 8(1).

Leave to appeal is required for each ground of appeal.[11] A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[12] Even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[13] In Morgan v Kramer, Hall J explained the operation of this proviso in the context of a summary trial in the following terms:[14]
The success of the grounds of appeal does not necessarily result in the setting aside of the acquittal and the substitution of a conviction. Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect…
Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded…
…
In my view, this is not a case where the proviso is excluded because the presuppositions of a fair trial have been breached.
[11] CA Act s 9(1).
[12] Sami v Duggan [2011] WASC 304 [38] (Simmonds J) (Sami).
[13] CA Act s 14(2).
[14] Morgan v Kramer [2019] WASC 68 [44] - [46], [48] (Hall J) (references omitted).
By orders made on 19 November 2024, a registrar ordered that the Appellant's application for leave to appeal and for an extension of time within which to appeal be heard together with the Appeal.
The court is to decide the Appeal on the evidence and material that were before the Magistrate.[15] The court has the power to 'admit any other evidence' for the purposes of determining with the Appeal.[16] The Appellant filed an affidavit affirmed on 3 January 2025 (January Affidavit). There is no written application that the January Affidavit be admitted. Further, at the hearing of the appeal, did the Appellant did not make an oral application for the court to admit the January Affidavit. However, for the reasons which follow, it was not necessary for me to consider whether to admit the January Affidavit in order to deal with the Appeal.
[15] CA Act s 39(1).
[16] CA Act s 40(1)(e).
In dealing with the Appeal, I am mindful that the Appellant is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.[17] The court is required to approach the documents in which he articulates his appeal with some flexibility.[18] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his appeal, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[19] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[20]
[17] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[18] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[19] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).
[20] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
One 'abiding difficulty' faced by the court is 'the tension between the duty of a … judge to ensure a fair and just [appeal] and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[21] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[22] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[23] A failure to provide this assistance to a litigant in person can constitute procedural unfairness.[24]
[21] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic).
[22] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[23] Zerjavic [74] - [75].
[24] See McCagh v Rural Bank (a division of Bendigo and Adelaide Bank Ltd) [2024] WASCA 68 [50] (judgment of the court); Prazmo v Director of Public Prosecutions [2024] WASC 386 [45] (Archer J).

For what grounds should the Appellant be given leave to Appeal?

Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a 'reasonable prospect of succeeding'.[25] The means that the ground 'is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success'.[26] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[27]
[25] CA Act s 9(2).
[26] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (judgment of the court).
[27] CA Act s 9(3).
A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[28] Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[29]
[28] Sami [38].
[29] CA Act s 14(2).
The grounds of appeal are as follows (bold in original; references to the transcript and footnotes omitted):
1.Seditious intent proven - denied right - right to answer to any claim while at the Kings Bench discrimination - forced to silence as Magistrate Dictates … contravening Judiciary Act 1903. Section 78 parties may appear.
2.Inference drawn: free will of man known whom he is called to Christ … as clarified throughout history and doctrine, as matter of fact - can identify his mark, sound and shape solely by Natural Laws to which Granted him able and willing to first construct a mark and the to recognize and distinguish his mark from another's mark or to give his free will to adjoins with.
3.Presentment, order and text of said Name: Kellan John of the family: Reynolds, surrounding construction thereof cannot be forced upon another but must be determination by either the granter, executor or the CEO - pursuant to: Land; Air; Water-''LAW3"- Every presentment, order by notice and text is to be read whole for determination of instrument surrounding construction of the legal name 'Status Identity Recognition' on presentment for prosecution.
4.Fact: Madness to acceptance blindly without question any name presented, bearing the same Burdon as the laws governing any signatory … to any such legal name, therefore principal of law of evidence is well-known - Trial precede presumption burden extinguished beyond reasonable doubt - presumption is the defence to be tried. No Jurisdiction for Magistrate to precede Improper Purpose - erosion of the federal compact pursuant to section 92 of the Constitution.
…
5.Magistrates supreme presumption of past verdicts cannot be rely on given complexities and history's important to the matter called - erroneous application to administrate law … coupled with erroneous application to the Restraining Order Act and Bail Act - Improper Purpose, by application of the Local Courts Act 1982 …, to infer application of Judiciary Act 1903 section 78B, Magistrates estoppel defence denied, Clearly, no adequate opportunity of being heard had been accorded to the applicant/plaintiff, the effect that the common law rules of procedural fairness had been applicable, result forced intercourse between subject and state - applicant/plaintiff entitled to be accorded an appropriate opportunity of being heard - unfair trial … discrimination.
…
6.Force by way of administrative process, at trial Magistrate to direct defence restriction - restrictive trade practices …, Legislative and executive discrimination forcing intercourse between subject and state pursuant to: section 92 and discriminating against people and subject of the Commonwealth pursuant to: section 117 constitution - intercourse proceeding held beyond limits -dismissing interest the subjects (people) corrosive in nature to Commonwealth.
7.Seditious intent to deprive a Natural right …: sprite and nature of the people at federation, intercourse is by his good will and the moral principal on the blessing of Almighty God …. Contempt ruling Administrative Law - IMPROPER PURPOSE - failing to subscribe to norms laid down at construction of the constitution, differential treatment by reference to ideologies - actual effect desecration to known principals concerning punitive arbitrary sentencing not proportionate and therefor (sic) inconsistent with to laws of the Commonwealth. Error at Law, Error of Fact, Perverting the Course of Justice.
…
8.Bias STANDING VIEW Magistrate holds fast no jurisdiction to proceed by presumption … obvious and certain errors of law and of fact pertaining to: SJA 1009 of 2023, magistrate not impartial, forced direction to which defence relied, minor court limited jurisdiction - incompetence to move court beyond Standard Operating Procedure - one sitting magistrate actual effect on individual rights corrosive, now of public importance as at federation. Error at La (sic), Error of Fact.
9.Intent "Her Honour: you need to listen to me or you can exit the court", intent is proven only way to proceed to intercourse is strictly administrational side of laws, its own will is forced upon another, natural justice extinct within the magistrates court of Albany, erroneous to natural law and the rule of law, a trial by ambush compelling intrastate intercourse upon peoples and subjects of the Crown-Improper Purpose overreach of the Magistrates Court Act actual effect discriminatory magistrate proceeds as though there is no such difference, or in other words magistrate treating things equally that are unequal [Castlemaine Tooheys, at 2]. Miscarriage of Justice, Perverting the Course of Justice.
10.Suppositions of Magistrate true legal effect: "damned another" 'without recourse or remedy Void of Careful consideration magistrates consideration ideology and approach to case to be read whole, history of events and injustices, preclude magistrate capacity to bring a peaceful resolution to the situation the magistrate is called to ask. Miscarriage of Justice, Perverting the Course of Justice.
…
11.Deception demeanor Magistrate stands true: summons with a court stamp on it, by the magistrates understanding to mean no witness was required to present to court, why then Magistrates need to entertain a proceeding to set aside such a summons if a summons with a court stamp obtained doesn't require attendance at court. Error at Law, Error of Fact, Miscarriage of Justice. Perverting the Course of Justice.
12.Two teared approach to justice none impartial - magistrate enforcing summons has no standing, intent limiting defence, whilst Magistrate willfully ignoring the filing of previous summons and respondent not following court orders - discrimination - intent is clear principal of law to balance and fairness seen wanting, non-impartial ruling. Error at law, error of Fact, Perverting the Course of Justice.
13.Again two teared approach: Magistrate dismissing court summons at the request of the respondent - magistrates consideration ideologies hold fast to discrimination, respondent entered form 6 to set aside summons for witness to appear – magistrates consideration ideologies was to ask question on the day of trial when already having set aside witness summons - abstinent denial of process to set aside a summons, magistrates failure to have the respondent follow the law and enter a sworn/affirmed affidavit with the form 6 to set aside a witness summons, now demonstrated differential treatment respondent able to set aside the primary witness in prosecution. Error at Law, Error of Fact, Judicial Error, Gross Miscarriage of Justice, Perverting the Course of Justice.
14.Magistrate's temperament criminal trial proceedings - summons - chief witness - Magistrates mind, a decision to not make herself knowledgeable of the matter before her. Effect - denied a witness from giving evidence - pertinent questions relevant in setting aside witness summons willfully ignored/dismissed. Intent is proven - magistrate didn't know why, where, when and with whom the set aside proceeding was for or what it was about - incompetence. Conscience intent to known rules of evidence existing via custom and natural laws dismissed: infer incompetence and against good faith, unconscionable conduct … by corporate agents … intent to pervert the cause of Justice.
15.Prejudice trial: Magistrates words alone "Her Honour: you may need to have the summons issued again - applicant/plaintiff notice of summon given a month before trial - respondent five days before trial issue to set aside summon - magistrate informs applicant whilst conducting trial proceedings - trial by ambush - applicant no prospect to a fair trial. Perverting the Course of Justice.
…
16.Magistrate of two minds - adjournment due to major errors of fact implementing an improper purpose of legislation - practice and procedure … - improper purpose - Magistrates temperament is called back into contention - Magistrates feelings out weight the need for a fair and balanced trial: "Magistrate Statement" 'leave this court room', actual effect - individual, people and public interest as a nondiscriminatory norm - discrimination exists - obtained in fraud … force under bonded insured instrument of state intercourse, implicating, many having nuances - the cause having as erosive effect towards the federal compact and the principal of legality. Judicial Error, Perverting the Court of Justice.
17.The general position at common law is that the person asserting a fact bears the onus of proof proof must be identifiable beyond the presumption of a standard reflected in the history of these matter - little tolerates towards material first hand testaments … turns on its own facts. The court must have regard to the resources available to both parties, and to the court, in managing this litigation at fair trial … is an absolute right - Magistrates actions amount to legal limbo - appellant forced out of court under threats of malice and violence, trial proceeded in absence of an accused, unconscionable to Cater to sensibilities of magistrate outside of law. Gross Miscarriage of Justice, Perverting the Course of Justice.
18.Conjectured proposition: A verdict judgment cannot stand on concern of magistrate to deny witness in chief, or accused for attending his own trial, prejudice ruling (prejudging before reasonable questioning) - committed outside of a lawful judgment.
19.The aggrieved party seeks remedy in Equity - The trial judge has already formed her prejudgment upon the accused prior to evidence being explored and that sets the course for prejudicial mismanagement of the trial by the trial judge.
20.A Trial judge must hot have preconceived ideas of evidence and must adjudicate on the principal that every case stands on its own merits, Magistrate denied chief witness without quest, intent is proven magistrates preconceived ideology consideration prejudicial.
21.The courts institutionalised prejudicial procedure by the trial judge's already formed opinion upon the accused creates the procedural unfairness simultaneously;·conduct is the only thing that can illustrate prejudice.
22.Procedural unfairness … adjudicated across the board: The law is be applied to all in equal measure and must not discriminate between people on arbitrary or irrational grounds according to law, fairness and balance was not adjudicated across the board in equal measure in this case, the basis of law is to identify the truly aggrieved in the first step, so the prejudice standing rests on the applicant so far by absence of identifying the truly wronged in the matter;
The consideration in equity is to discover who was truly wronged for a remedy to take effect:
Breach of FVRO & Bail (Police Prosecutor) v FVRO establishment in fraud (Respondent) Identifies the truly wronged.
23.Any decision otherwise is prejudicial. It's recognised in consecutive verdicts in favour of the applicant apposed in denial of the exploratory evidential right of the respondent to question the validity of the evidential exhibits provided by the applicant.
24.Trial must run its judicial course for the public's reliance in confidence in justice to be seen to be done and must be done; and in this case was not done.
25.The trial judge has already formed his prejudgment upon the respondent prior to evidence being explored.
26.The formality of a trial that justice had been applied when in fact justice had in fact not been applied, the trial was a ruse to demonstrate justice when in fact justice had not been demonstrated. Error at Law, Error of Fact, Perverting the Course of Justice.

The vast bulk of the grounds of appeal are irrational, fanciful and/or absurd and have no reasonable prospect of succeeding. They embody what courts have taken to refer to as 'pseudo-law'.[30] Pseudo‑law is not law.[31]
[30] See generally: Hobbs H, Young S & McIntyre J, 'The Internationalisation of Pseudolaw: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand' (2024) 47(1) UNSW Law Journal 309.
[31] Commonwealth Bank of Australia v Deighton [2024] WASC 410 [90] (Russell M); Kelly v Fiander [2024] WASC 275 [26] - [29], [36] (Musikanth J); Reynolds 2024 [53]; Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24] (reasons of the court); Branch [65].
At the hearing of the Appeal, the Appellant sought to put before the court arguments to the effect that the restraining order, the subject of the breach in AL 2414 of 2022, was invalid. As I informed the Appellant during submissions, an appeal from the decision of a Magistrate to grant a restraining order must be made to the District Court.[32] There is no statutory right of appeal from a decision of a Magistrate to grant a restraining order to the General Division of the Supreme Court, nor any power in the District Court to refer a matter to the General Division of the Supreme Court.[33] To the extent that the ground of appeal seeking to challenge the validity of the restraining order, no leave should be granted as the issue is not one that can be considered in the Appeal.
[32] Restraining Orders Act 1997 (WA) s 64(2) (ROA); Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(1) (MCCPA).
[33] Though there is a power of to transfer an appeal in the District Court to the Court of Appeal: MCCPA s 41.
However, bearing in mind that the Appellant is a litigant in person, I have discerned three issues in the grounds of appeal which I need to consider in more detail:
(a)whether the Magistrate erred in excluding the Appellant from the courtroom and the proceeding with each trial (ground 18);
(b)whether the Magistrate erred in denying the Appellant procedural fairness in relation to the witness summons issued to the Son (grounds 13, 15); and
(c)whether the Magistrate was biased against the Appellant by prejudging the matter (grounds 8, 20, 21).
I am open to granting leave to appeal in relation to grounds 8, 13, 15, 18, 20 and 21. I refuse leave to appeal in relation to the remaining grounds.

Did the Magistrate err in excluding the Appellant from the courtroom?

Principles

For indictable offences, with limited exceptions, an accused is required by CPA s 88 to be personally present throughout the proceedings.[34] This broadly reflects the common law.[35] However, the scheme of the CPA does not always, or even generally, require the personal attendance of an accused before a court in relation to simple offences.[36] For example, there is a set procedure in CPA s 55 for a summary change to be heard and determined in the absence of an accused.[37] This procedure is complemented by CPA pt 3 div 7 which sets out a comprehensive procedure by which a decision made in the absence of the accused may be set aside.
[34] Saad v Baron [2012] WASC 507 [45] (Beech J) (Saad).
[35] Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 [26] (reasons of the court).
[36] Saad [47], [49].
[37] See generally: Cousins v WA Police [2025] WASC 39.
An accused in a summary trial does, however, have an entitlement to appear. This is set out in CPA s 172(1):[38]
A party to a case is personally entitled to appear before the court in order to present and conduct the party's case and to call, examine, cross‑examine and re-examine witnesses,
[38] Which provision applies to any prosecution in any court: CPA s 125.
The entitlement to appear is not absolute. In the circumstances set out in CPA s 140, an accused may be excluded from proceedings:[39]
(1)Despite sections 88(4) and 172(1), if an accused conducts himself or herself in a manner which makes it impractical to continue proceedings in his or her presence, the court may order the accused to be removed and the proceedings to proceed in the accused's absence.
(2)This section does not prevent a court from allowing an accused to be present before the court by means of a video link or audio link or from taking evidence from an accused by either such means.
[39] CPA s 88(4) is not relevant as it only applies to prosecutions on indictment.
This provision assumes that the proceedings have commenced in the presence of the accused, but cannot be continued in his or her presence.
The power in CPA s 140(1) broadly reflects the position at common law.[40]
[40] Tessa v R [2024] VSCA 204 [179] (reasons of the court); R v DAJ [2005] QCA 40 [6] (McMurdo P).
The wording of CPA s140(2) does not require the court to make the options set out in that subsection available to an accused in circumstances where the power in CPA s 140(1) is invoked.[41]
[41] Mills v Hendriksen [2008] WASC 79 [188] (Hasluck J).
In Reynolds 2025, involving the Appellant, Lemonis J agreed with the following observations on CA s 140 made by Jenkins J in Sprlyan v Wyborn:[42]
If an accused fails to comply with the directions of a judicial officer and, by their behaviour prevents a hearing from proceeding in a fair, civil and reasonably efficient manner, the judicial officer has the right to remind the litigant of his or her power to remove the accused from the court room and to conduct the hearing in their absence. Of course such a power should only be exercised in circumstances where it is the only practical way the judicial officer can conclude the hearing in a just manner.
[42] Sprlyan v Wyborn [2019] WASC 227 [817] Jenkins J) (Sprylan); Reynolds 2025 [74] - [75].
In Reynolds 2025, Lemonis J found that the conduct of the Appellant did not reach the required threshold in CPA s 140:
There can be no doubt that the appellant's behaviour preceding and during the trial on 2 August 2022 made the conduct of the trial more difficult and was a source of frustration to the learned magistrate. The appellant's continued insistence that he was not the person 'Kellan John Reynolds' was without merit and disrupted the efficient running of the trial. That being said, I do not consider the appellant's behaviour reached the requisite threshold in s 140(1), such that his conduct made it impracticable to continue the proceedings in his presence. The threshold of 'impracticable' is higher than just inconvenient or inefficient. The appellant's conduct could have been managed by the learned magistrate limiting the scope of the cross‑examination.
In essence, his Honour was of the view that limiting the scope of cross‑examination was another practical way in which the judicial officer could have concluded the hearing in a just manner, to paraphrase the quote from Sprylan at [41].
In Sprylan, in the two paragraphs preceding the quote at [41], Jenkins J observed:[43]
A judicial officer should show patience and courtesy towards any accused, including one appearing in person, even if they are misguided in their understanding of the law, procedure or facts.
On the other hand, an accused appearing in person must comply with the directions of a judicial officer. If those directions are unlawful or result in a miscarriage of justice, the accused has the remedy of an appeal.
[43] Sprylan [185] - [186].
In Sprylan the Magistrate had threatened to invoke CPA s 140 in the context of attempting to control the appellant at various stages throughout the trial. Jenkins J found that these threats did not constitute a denial of procedural fairness.[44]
[44] Sprylan [188] - [190].
In some cases where an accused's behaviour falls within CPA s 140(1), one option is for the court to remove the accused from the court and adjourn.[45] Another practical option is for the accused to participate by video link from a room in the custody area of the court.[46] A refusal by an accused, at least an accused in custody, to appear in court via a video link may constitute a contempt of court.[47]
[45] See for example: WFS v State of Western Australia [No 4] [2020] WASCA 178 [218] (judgment of the court) (WFS).
[46] Again, see for example WFS [217]; also Branch v Town of Victoria Park [2013] WASC 231 [15] (Seaward J).
[47] See for example: Mansell v Mignacca-Randazzo [2013] WASC 66.
The interpretation of CPA s 140(1) in these decisions is to the effect that removing an accused from the court and proceeding in his or her absence is an outcome of last resort. If there is any other practicable alternative, then this should be adopted, or at least attempted. This interpretation reflects the foundational importance of an accused being able to exercise the entitlements set out in CPA s 172(1).

Submissions

The Appellant's written submissions do not materially add to the concerns which he has expressed in relation to this ground in the Appeal notice.
Counsel for the Respondent submitted that the Magistrate applied the incorrect test. Her Honour on a number of occasions referred to the Appellant being removed because he was acting contemptuously.[48] The Magistrate made no reference to removing the Appellant from the courtroom pursuant to CPA s 140, and did not purport to do so. Her Honour thus did not, on the face of the record, consider whether or not the Appellant's conduct made it impractical for the trial to proceed in his presence. In this regard, the Magistrate applied the wrong test and erred in law.
[48] Magistrates Court transcript, 28 August 2024, pages 3, 4, 12, 62.
Counsel further submitted that the contempt powers in Magistrates Court Act 2004 (WA) (MCA) s 15 and s 16 do not provide the court with the power to remove a person in contempt from the courtroom on the basis that they are acting contemptuously. It is, however, a contempt for a person to, while the court is sitting, wilfully interrupt the proceedings or misbehave.[49]
[49] MCA s 15(1)(a)(i) and (ii).
On this basis, the Respondent submits that the ground of appeal relating to the exclusion of the Appellant should be decided in favour of the Appellant.
The Respondent further submitted that there has been such a significant breach of the presuppositions of a fair trial that the court should not dismiss the appeal on the basis that there has been no substantial miscarriage of justice. The submission is made that 'absent the learned magistrates reasons either expressly or substantively addressing the requirements of s 140, it is not possible to contend that the legal error was not material to the decision to convict the appellant such that the proviso in s 14(2) of the CA Act cannot apply'.[50]

Determination

[50] Respondent's submissions, par 48.

The MCA and Magistrates Court (General Rules) 2005 (WA) (MCGR), in pt 4, set out the procedure to be followed when a Magistrate invokes the contempt power. MCA s 40(3) provides that 'rules of court may provide for the procedure for dealing with a person who is allegedly guilty of contempt and may provide for the person to be dealt with without a formal charge and in a summary way'. By MCGR r 31(1), if 'an alleged contempt occurs…while the Court, constituted by a magistrate…is sitting… and the magistrate… is satisfied that the alleged contempt should be dealt with immediately because it is an immediate threat to the authority of the Court or to the integrity of the proceedings, the [magistrate] may deal with it summarily'. Then, by MCGR r 31(2), if 'a magistrate… decides to deal with an alleged contempt summarily, he or she must if practicable, orally inform the defendant of the nature and particulars of the alleged contempt'. There is then a procedure in MCGR r 36 for notifying the contemnor of the outcome of the contempt proceedings. Otherwise, by MCGR r 35 the 'procedure for dealing with an alleged contempt, whether summarily or otherwise, is to be the same, so far as is practicable, as that followed in the Supreme Court when it is dealing with an alleged contempt'.
It is evident from the passages of the transcript set out at [13] and [17] that, while the Magistrate spoke about contempt, her Honour did not purport to use the contempt procedures in the MCGR. Having said that, it would have been quite open for the Magistrate to have concluded that the behaviour of the Appellant amounted to wilful interruption or misbehaviour for the purposes of MCA s 15(1)(a)(i) and (ii).
It is also the case that a Magistrate has the power to take reasonable steps to ensure access to the courtroom, or to exclude from it any person whose behaviour interrupts or is reasonably to be apprehended will interrupt the ordinary procedures of the court and to employ the services of police officers to carry out his or her directions for the purpose of keeping order in the courtroom and its precincts.[51] There is no need to make a finding of contempt, or potential contempt, before this power may be exercised. This power is part of the powers of the Magistrates Court reasonably required for the proper carrying out of its statutory functions.[52] A similar power exists to exclude persons who are not parties pursuant to CPA s 171(4). This power could have been used to exclude the supporters of the Appellant referred to by the Magistrate in the passage quoted at [17]. However, where the person being removed is the accused in a summary trial, and the court proposes to proceed in the absence of the accused, the court should refer to, and use, the specific power in CPA s 140(1). I do not need to decide whether the contempt powers available to a Magistrate would have allowed the same outcome to be achieved.
[51] Ex parte Tubman; Re Lucas [1970] 72 SR (NSW) 555, 570 (Asprey JA), 580 (Mason JA) (the remaining member of the Court, Herron CJ agreed with both Asprey JA and Mason JA); In re Andrew Dunn and The Morning Bulletin Ltd [1932] St R Qd 1, 15 (R J Douglas J), 16 (Henchman J), 17 (E A Douglas J).
[52] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 [40] (Kiefel CJ); Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 [50] ‑ [51] (Gaudron, Gummow and Callinan JJ); Grassby v The Queen (1989) 168 CLR 1, 16 - 17 (Dawson J); Fisher v O'Hehir [2020] WASC 353 [51] (Smith J), affirmed in Fisher v O'Hehir [2023] WASCA 19 [19] - [20] (judgment of the court).
Be that as it may, in purporting to exclude the Appellant from the courtroom in the exercise of contempt powers without referring to, or purporting to apply, the relevant provisions of the MCA and MCGR the Magistrate made an error of law. Ground of appeal 18 should be decided in favour of the Appellant on this basis.
As mentioned, if a ground of appeal might be decided in favour of the Appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[53]
[53] CA Act s 14(2).
CPA s 140(1) clearly gave the Magistrate the power to remove the Appellant from the court room and proceed to conduct the trial in his absence. The Magistrate did not purport to rely on the power in CPA s 140(1). However, if the power in CPA s 140(1) could properly have been used to have removed the Appellant from the court room in the circumstances facing the Magistrate, then this has a bearing on whether any substantial miscarriage of justice occurred.
On the one hand, the Magistrate's reasons did go to the issue of impracticality. As set out at [17], her Honour referred to the Appellant 'making his nonsensical submissions to me in an argumentative way, in which he talks over me continually'. And 'Mr Reynolds, as I said, was talking over me, was not listening, and simply wanted to be belligerent and to advance an argument that I, in fact, was the one who was interfering with him'.
Reviewing the transcript, it is readily apparent to me that at the point in time the Magistrate had the Appellant removed from court, the Appellant had been conducting himself in a manner which made it impractical to continue proceedings in his presence. Her Honour had been trying for over 10 minutes to have a sensible conversation with the Appellant. But he would not let her do so.
The question then becomes whether there was any other practical alternative to removing the Appellant from the courtroom and continuing in his absence.
In my view, removing the Appellant from the courtroom and placing him in a remote video room was not a practical option given the Appellant's behaviour up to that point. Nor was he remanded in custody which would have given the court power to place him in a remote video room involuntarily and potentially mute his microphone.[54]
[54] As occurred in Branch. See also: O'Connell v Western Australia [2012] WASCA 96 [81] (Mazza JA, with whom Martin CJ and Buss JA agreed).
Nor, in my view, would it have been practicable to have had an initial conversation with the Appellant to set out some form of ground rule pursuant to which the trial was to be conducted.[55] As is apparent from the transcript, the Appellant's conduct precluded the Magistrate from having any form of sensible conversation with the Appellant, even when she was trying to assist him (for example, inviting him to inform the court as to the relevant evidence the Son could give).[56]
[55] As occurred in Tessa.
[56] Magistrates Court transcript, 28 August 2024, page 6.
However, there was the option of a short adjournment. This may well have had the effect of dissipating some of the emotion that can be sensed from the transcript. On returning the Magistrate could have quite properly drawn the Appellant's attention to the power in CPA s 140(1) to remove him from the court room and to conduct the hearing in his absence ([44]). If the conduct of the Appellant had continued in the same vein there may well have been no other option than to invoke the option of last resort, remove the Appellant from the court room and continue with the trial in his absence.
For this reason, I am of the view that it would not have been a proper use of the power in CPA s 140(1) to have removed the Appellant from the courtroom at the point when the Magistrate did. That being so, I am unable to conclude that no substantial miscarriage of injustice occurred as a result of the error of the Magistrate and must allow the appeal. The Appellant was improperly denied his right to participate in the trials the subject of this Appeal. [57]

Did the Magistrate deny Appellant procedural fairness by setting aside the witness summons issued the son.

[57] Reynolds 2025 [78].

Given my decision at [64], it is not necessary for me to deal with this issue.

Was the Magistrate biased against the Appellant by prejudging the matter?

However, it is appropriate that I briefly address the issue of bias. This ground of appeal is without merit. Nothing which the Magistrate did or said at the hearing on 28 August 2024 could possibly lead a fair-minded lay observer to apprehend that the Magistrate might have formed any concluded view as to the Appellant's guilt of the offences with which he had been charged or was in any other way biased.[58] To the contrary, the Magistrate was open to hearing from the Appellant on the issue of whether leave should be granted for the Son to give evidence and, if so, for the trial to be adjourned. From the transcript which I have quoted, it is readily apparent that the Magistrate was doing everything she could to progress the prosecutions in a manner that was procedurally fair. It was the behaviour and attitude of the Appellant which prevented this from occurring.
[58] Frigger v The State of Western Australia [2024] WASCA 159 (reasons of the court) (citations omitted).

What are the appropriate final orders?

In summary, in relation to ground of appeal 18, leave should be given to appeal and to appeal out of time. Leave to appeal on the remaining grounds should be denied. The Appeal should be allowed and the convictions of the Appellant in AL 2414 of 2022 and PE 2382 of 2023 be set aside. Both should be remitted to the Magistrates Court for retrial before a different Magistrate. To facilitate this, and as the Appellant is now living in Perth, they will be remitted to the Magistrates Court in Perth. The witnesses (including the Son if leave to issue a witness summons is granted) can give evidence by video link if required. Further, I suggest that the two trials be listed on separate occasions.

My preliminary view is that there should be no order as to costs, but I will hear from the parties on that issue.
In conclusion, I endorse the following remarks of Tottle J in Cousins v WA Police which are entirely apposite to this Appeal:[59]
[59] Cousins v WA Police [2025] WASC 39 [24] (Tottle J).
…. I must record my strong disapproval of the grossly disrespectful attitude displayed by the appellant towards the magistrate. Judges of this court frequently comment on the high volume of work undertaken by magistrates. They are on the front line in the administration of justice in this State. The pressure of their work is intense and generates considerable stress. Magistrates deserve the utmost respect from the members of the community they serve and not disrespect of the nature shown by the appellant … in this case.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
9 APRIL 2025